PROVISIONS SUBSTITUTED FOR SECTIONS 6 TO 12 OF THE ROAD TRAFFIC ACT 1972

HC Deb 14 April 1981 vol 3 cc270-5

Mr. Stott

I beg to move amendment No. 30, in page 64, line 40, leave out from 'breath' to end of line 42 and insert 'if the person is in his normal place of residence, unless the constable has reasonable cause to suspect that the person has peen involved in an accident; and for the purpose of this subsection "accident" shall have the same meaning as in section 25 of the 1972 Act.'. The amendment relates to a provision in the Bill which shall not be taken to authorise a constable to require a person to provide a specimen of breath while the constable is a trespasser in a place from which that person is entitled to exclude him. Serious doubts have been raised, especially among the Association of Chief Constables, which views the issue as the most important and serious in the Bill next to the non-implementation of the Blennerhassett report. This morning I spoke to Mr. Roger Birch, the chief constable of Warwickshire, who, in a letter to The Times, outlined his objections to this part of the Bill. I quoted to the Minister in Committee what Mr. Birch had written, namely, If the clause becomes law a suspect driver impaired through drink, perhaps being pursued by the police after a non-stop accident, will be able to avoid the consequences of his action by taking refuge, for example, at his golf club, in his warehouse or even in his field if he happens to own one. The Bill has not been amended since its consideration in Committee. The Minister said that he would think about this issue in view of the power of the arguments, but it seems that he has done nothing about it unless he plans to take action in another place. The clause prevents a police officer from exacting a breath test upon a person who is suspected of drinking and driving if that person has committed an accident and has made a bolt for his golf club, his lock-up warehouse or his lock-up paper shop, or has sat in the middle of a field that he owns. The person would be able to treat the police officer as a trespasser and therefore refuse in law to co-operate and to supply a breath sample.

I have already indicated that the crime of not stopping after an accident is on the increase. It is increasing because people wish to avoid being breathalysed. Therefore, they may go to their own homes. We are not suggesting that police officers should have the unfettered right to enter people's homes. We are saying that the law should not be drafted in such a way that it prevents a police officer from taking a breath test from someone suspected of drinking and driving and being involved in an accident.

Indeed, in Committee I pointed out that the Faculty of Advocates in Scotland said that the question of trespass was somewhat suspect in Scottish law. It tells me that that expression has no definite meaning in Scottish law. We suggest that it should be defined in the Bill. Indeed, unless a constable forces his way into a building, the owner of the land in Scotland would have no right to exclude him. Thus, the exception would appear to be of limited application.

I am waiting with bated breath for the Minister's response to what the Faculty of Advocates says about the drafting of this legislation. This is a worrying aspect of the Bill. I take seriously the exhortations made this morning by Mr. Birch. The police are concerned that their power will be limited and curtailed by the rather clumsy drafting at the end of paragraph 7(3) of the schedule. It is serious if police officers are prevented from carrying out their duty because someone can exclude them from places that he owns.

In Committee the Minister said that he doubted whether a police officer could be excluded from a golf club on the ground of trespass. However, I am advised that that may not necessarily be so. I am informed that certain county prosecuting solicitors could make out a good case to prove that it was trespass. The Minister may say that case law already exists. He may cite the famous case of Morris and Beardmore. In that case, the police officer entered the man's home, was asked to leave, refused to do so, and breathalysed the man. Case law has been build up around the argument whether or not that was trespass.

I believe that a person's home needs to be defended in that respect. However, we should be able to take action if people are lucky enough to be members of golf clubs, or own any property, and use it as an excuse to break the law.

The incidence of leaving the scene of an accident is increasing day by day. It is a serious offence, about which chief constables are worried. I therefore wait with bated breath to hear what the Minister says, because he told us in Committee that he would think about the matter seriously and try to do something about it.

Mr. Kenneth Clarke

There were allegations in the previous debate that the Bill might create a lawyer's paradise. Although some hon. Members present may be attracted by such a vision, I suggest that that is precisely what it will not do.

The previous legislation in 1967 was effective in its results for motorists, but as a result of its drafting it created considerable doubts and confusion in the courts as well as a great deal of litigation. Since 1967 it has been much in need of amendment. The purpose of dealing with drink-driving again in this year's Bill has been to remove many of those drafting errors and procedural difficulties, to simplify the law and to make it easier to enforce.

Having said that, I must concede that the amendment touches on one of the trickier areas of drafting. It has been giving some difficulty throughout the progress of the Bill, but this provision is not an attempt to pave new ground, to create new law, or to set up fresh obstacles for the police; it is an attempt to clarify the law, building on the existing case law, particularly the case of Morris and Beardmore, to which the hon. Member for Westhoughton (Mr. Stott) referred.

As it stands, the Bill has separated out the offence of driving with above the permitted level of alcohol in one's breath from all the technical procedures that go before the charge and the appearance in court. It will no longer be possible for someone to escape conviction by arguing about the technicalities that occurred when he was required to give a breath test, or the precise grounds upon which he was arrested, and other such matters. Many of the problems that we are discussing here will not in the end affect the likelihood of someone being convicted if there is clear evidence of some sort that he was above the prescribed limit at the relevant time.

However, it is necessary in the Bill to lay down strict guidelines for, first, the circumstances in which the policeman should have the power of arrest and, secondly, the circumstances in which the policemen should be empowered to require a suspect to give a breath test. Those grounds are not confused, as was said in the last debate, but they are clearly set down in the schedule. We are concerned about the extent to which a policeman should have the right to require a suspect to give a breath test when the suspect is in his own home. That is what arose in the case of Morris and Beardmore.

It was established by the courts that in that case, when a policeman followed a motorist to his home and when in the home was required by the motorist to leave, but refused to do so, and then purported to require a breath test, it was an unlawful requirement, because the policeman was unlawfully there as a trespasser. That is the present law.

So far as I am aware there is no pressure to change that, because most policemen accept that the Englishman's home should be inviolable, in the ordinary cases of being required to give a breath test. For instance, if one took out any restraints on the policeman's ability to require a breath test anywhere, in theory it would be possible for a policeman to follow a suspect home, because he had seen that person commit a minor moving traffic offence. He could claim that one of his rear lights was out, or something of that sort. He could insist on the right to go into the suspect's home and to require a breath test. No one wants that.

On the other hand, serious doubts have been expressed by police forces and other people about the width of the words that we have used in that paragraph, and whether it might extend to protecting a suspect in places other than his own home. I make it clear that it is the Government's intention to confine the protection—if one can call it that—to a motorist to his own home. It is not intended to widen the exclusion of the police officer's right to other premises. If the present wording fails to achieve that I have no doubt that in another place the Government, assisted by their Lordships, will deal with that and make sure that the wording is put in order.

I have followed the arguments made by the police. They have been reproduced to some extent by the hon. Member for Westhoughton. Mr. Birch has expressed fears of the sort described. Some of the fears are wider than is necessary. All that the Bill prescribes is that the suspect cannot be required to provide a specimen of breath, whilst a constable is a trespasser in a place from which that person is entitled to exclude him. That does not mean that someone would be entitled to exclude a policeman from a golf club of which he happened to be a member or from premises of any kind that he happened to have entered. On the other hand, a person may be entitled to exclude a policeman from remaining in his—the person's—own home and to render a policeman a trespasser in his home. It is intended that that should be covered.

Other possibilities occur. It is arguable that someone would be entitled to exclude a policeman from his field or warehouse and render him a trespasser, but the number of cases in which the motorist will be able to speed away happily and leap into a nearby warehouse or field that he owns is limited. Nevertheless, I still concede that, because of the continuing dissatisfaction with the wording, we shall reconsider it. It is the intention to confine the exclusion of the policeman's right to the suspect's home. We trust that if it has not been achieved yet, the correct wording will be produced.

11.45 pm

The amendment raises one final point. The Opposition appear to be arguing that a person should be protected from the requirement to give a breath test in his own home except where he has been involved in an accident. I can see the attraction of that where a hit-and-run accident has occurred and the driver has fled to his home and insists on excluding the policeman so that he cannot require him to take a breath test, but accidents go much wider than that. Referring back to the debate about discretion on points, accidents can include a trivial bump between two cars, involving no more than slight loss of paintwork. Trivial cases would also be included.

There are also drafting defects. The words "normal place of residence" will give rise to considerable difficulty in certain cases if one tries to define them—for instance, the vistor who happens to be staying for the time being away from his normal home. I do not rely on any more drafting points.

The Bill is not as defective as has been claimed. It seeks merely to confirm and to clarify existing case law. If by chance we have gone wider than we intended, that can be corrected in another place. We have not forgotten the undertaking that I gave in Committee. We shall consider the matter carefully.

Mr. Stott

I am conscious that this is a difficult area. The Department's lawyers may need a little more time to consider our objections and those of the police. The measure can be tidied up in another place, after consideration, so in view of the Minister's undertakings, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Fowler

I beg to move amendment No. 32, in page 69, line 34, leave out '40' and insert '35'.

The amendment carries out the undertaking given in Committee to change the prescribed limit for breath in the light of the new blood breath ratio that recent scientific work both here and abroad has shown to be more appropriate.

The background is set out in the paper on breath analysis, which I made available in the Library last week. Breath analysis has been used in other countries for some years. There is a relationship between the alcohol in blood and in breath, as there is between alcohol in blood and in urine. The ratio is considered to be 2,000:1; which means that 1 ml of blood contains the same quantity of alcohol as do 2,000 ml of breath. The breath/alcohol concentration produced by a blood/alcohol concentration of 80 mg per 100 ml of blood—the current prescribed limit—using the ratio of 2,000:1 is 38 micrograms per 100 ml of breath. The Government decided, therefore, that the prescribed breath limit should be 40 micrograms. However, there has been a great deal of further scientific work on the relationship between the alcohol concentration in the blood and in the breath.

In particular, the Home Office forensic science service has followed up data obtained from the field trials in which various breath analysis machines were tested. It is now clear that it is more appropriate to use a blood-breath ratio of 2,300 to 1. The breath alcohol concentration equivalent to a blood alcohol concentration of 80 mg per 100 ml of blood using this ratio is 35 mcg per 100 ml of breath. We are therefore proposing to change the prescribed breath limit to 35 mcg. This will ensure—I think that this must make sense, and this is entirely what it is about—-that all three prescribed limits, for breath, blood and urine, equate to each other and that a person will be treated the same whichever specimen he is required to provide.

Mr. Waller

The amendment carries out an undertaking made to me in Committee when I proposed that the limit that had been established should be reduced. If the change had not been made and we had stuck to the original figure of 40 mcg, it might have been taken by some that the new limit was higher than that which previously obtained. It might therefore have been thought by some drinkers who intended to drive that they could have one extra drink and get away with it. The amendment ensures that that will not be the case and that we shall continue with the same kind of limit as has existed up until now. I welcome the amendment put forward by my right hon. Friend.

Amendment agreed to.